2011 (2) TMI 1128 - HC - Income Tax

Violation of the principles of natural justice - demand raised - Held that - It is clear that the law is well settled in the case of Kothari Filaments v. Commissioner of Customs (2008 (12) TMI 28 - SUPREME COURT) that when a statutory authority has passed an order on the basis of the materials which were known only to itself and on the basis of such materials arrived at the conclusions without supplying copies thereof or without providing opportunity of inspection of such document - it can be safely concluded that no effective opportunity was given to the assessee to respond to the field visit report said to have been handed over to the assessee s representative on 1.12.2010 when on the same day, the hearing of the assessment proceedings were concluded - since, the assessee was entitled to prior notice of any report or material which the Assessment Officer, intended to rely upon and without such advance notice, by merely claiming that the said reports are available on the internet, does not and cannot satisfy the mandate of rules of natural justice Regarding payment made in cash - Held that - It is open for the petitioner to furnish to the satisfaction of the Assessing Officer the circumstances under which the payment in the manner prescribed in Section 40A(3) was not practicable or would have caused genuine difficulty to the payee - With regard to the exemption to make the payment in the manner prescribed under Rule 6-DD, is not applicable to the petitioner herein as he is a trader - impugned assessment order is hereby quashed & revenue is directed to serve copies of the reports sought to be relied upon by the revenue against the assessee. Decided in favor of the assessee by way of remand.

Issues Involved:
1. Violation of principles of natural justice.
2. Reliance on documents/reports not provided to the assessee.
3. Adequate opportunity for the assessee to respond.
4. Proper procedure for reassessment.
5. Interim protection of revenue interests.

Detailed Analysis:

1. Violation of Principles of Natural Justice:
The petitioner challenged the assessment order dated 6.12.2010 on the grounds of violation of natural justice. The petitioner argued that the Assessing Officer relied on various documents and reports without confronting the assessee or providing copies. The court noted that the principles of natural justice require that a person charged with misdeclaration is entitled to know the grounds and documents relied upon to ensure a proper hearing. This was supported by the Supreme Court's rulings in Kothari Filaments v. Commissioner of Customs and Collector of Central Excise v. Steel Strips Ltd., which emphasized the necessity of providing documents to the assessee for a fair hearing.

2. Reliance on Documents/Reports Not Provided to the Assessee:
The Assessing Officer relied on several reports, including those from MPEDA, CDA, Cirrus Management Services, Nimble Systems, and a Field Visit Report dated 14.11.2010. The petitioner contended that these reports were not provided, violating natural justice. The court observed that the revenue's argument that these reports were available on the internet did not suffice. The assessee must be given prior notice and access to any documents relied upon by the Assessing Officer.

3. Adequate Opportunity for the Assessee to Respond:
The court found that the Field Visit Report was allegedly handed over to the assessee's representative on 1.12.2010, the same day the hearing concluded, leaving no effective opportunity for the assessee to respond. The court concluded that this denied the assessee a fair chance to address the contents of the report, thereby violating natural justice.

4. Proper Procedure for Reassessment:
The court quashed the impugned assessment order and directed the revenue to serve copies of the relied-upon reports to the assessee. The reassessment proceedings were to be concluded within six weeks from the date of the petitioner's appearance before the Range Officer. The court emphasized that the assessee should be given a fair chance to present its case, including proving the genuineness of transactions and the necessity of cash payments under Section 40A(3) of the Income Tax Act.

5. Interim Protection of Revenue Interests:
To protect the revenue's interests, the court directed the petitioner to deposit Rs. 1.5 crores within a week, subject to the outcome of the reassessment proceedings. The court allowed the petitioner to file a statement of claim and prove the bona fide nature of transactions and the impracticality of non-cash payments.

Conclusion:
The writ petition was disposed of with directions to quash the impugned assessment order, serve the necessary documents to the assessee, and conduct a reassessment within a specified timeframe, ensuring compliance with principles of natural justice. The petitioner was also directed to make an interim deposit to safeguard revenue interests.

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